County law on cyber bullying struck down by New York appeals court

A New York county law intended to outlaw cyber bullying in schools is overly broad and violates the First Amendment, says the state's top court in striking down the legislation.

Elected officials in Albany County, New York, attempted to criminalize school cyber bullying with a law enacted in 2010 that prohibited “any act of communicating or causing communication to be sent by mechanical or electronic means … disseminating private, personal, false or sexual information, or sending hate mail … with the intent to harass, annoy ... or otherwise inflict significant emotional harm on another person,” according to Tuesday's ruling by the New York Court of Appeals in Albany in The People v. Marquan M.

The law outlawed cyber bullying against “any minor or person” situated in the county, and provided that engaging in such activity was a misdemeanor offense punishable by up to one year in jail and a $1,000 fine.

A month after the law became effective in November 2010, Marquan M., a 15-year-old student attending Cohoes High School in Cohoes, New York, which is within Albany County, created a Facebook page with the pseudonym “Cohoes Flame” and anonymously posted photographs of classmates and other adolescents “with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other personal information,” according to the ruling.

“The descriptive captions, which were vulgar and offensive, promoted responsive electronic messages that threatened the creator of the website with physical harm,” said the ruling.

Marquan M. pleaded guilty to one count of cyber bullying, but reserved his right to raise his constitutional arguments on appeal. The county court in Albany held the local law was constitutional to the extent it outlawed such activities directed at minors, and that the defendant's First Amendment rights were not violated.

The Court of Appeals disagreed in a 5-2 ruling. “The county concedes that certain aspects of the cyber bullying law are invalid but maintains that those portions are severable, rendering the remainder of the act constitutional if construed in accordance with the legislative purpose of the enactment,” says the ruling.

“Interpreted in this restrictive manner, the county asserts that the cyber bullying law covers only particular types of electronic communications containing information of sexual nature pertaining to minors and only if the sender intends to inflict emotional harm on a child or children.”

However, says the ruling, “it appears that the provision would criminalize a broad spectrum of speech outside the popular understanding of cyber bullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult,” says the ruling

“We conclude that it is not a permissible use of judicial authority for us to employ the severance doctrine to the extent suggested by the County or the dissent,” says the ruling. The law “is overboard and facially invalid under the Free Speech Clause of the First Amendment,” said the ruling, in dismissing the case.

The dissenting opinion says invalid provisions of the law “can be readily severed from the rest of the legislation, and … what remains can, without any strain on its language, be interpreted in a way that renders it constitutionally valid.”